Former Virginia Attorney General Ken Cuccinelli speaking in Washington, D.C. Photo taken by Gage Skidmore.

The Legality Of Trump’s Public Charge Rule

A nationwide injunction has been issued against the Trump Administration’s new “public charge” rule, which attempts to link immigration status to individual income and usage of public welfare programs. While the actual number of immigrants affected by the Department of Homeland Security’s enforcement of these rules is relatively restricted and the policy is currently on hold, the damage has already been done. Large numbers of immigrants have already unenrolled from welfare programs out of fear and confusion. 

Historical Background of “Public Charge

First introduced in the Immigration Act of 1882, the term “public charge” has been used to refer to prospective immigrants that are unable to take care of themselves due to poverty or disabilities. Being classified as a “public charge” constituted grounds for denial of legal entry or citizenship because the potential immigrant was viewed as far too dependent on the U.S. government. 

Although a seemingly restrictive rule, few immigrants have been turned away on these grounds since the 1940s. In fact, in 1999, the Clinton Administration  redefined the term “public charge” to only include immigrants receiving public cash assistance or long-term, institutional care at the government’s expense. For the last twenty years, interpretation of “public charge” has remained consistent with the Clinton Administration’s proposal and rarely has been used to deny citizenship.

Today’s Expanded Definition

However, with little legal or historical precedent, the Department of Homeland Security under President Trump has repeatedly attempted to generalize the socioeconomic factors that classify someone as a “public charge.” In fact, under the “public charge” rule, the Trump Administration wants to give individual, low-level officials at the U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection the discretionary, vetting power. This would allow these officials to determine who is legally allowed to enter and remain in the United States, using an ambiguous 183-page regulation. 

At its core, the DHS’s new rule would consider usage of food stamps, Medicaid, or housing subsidies for a cumulative twelve months in any given three year period as  negative factors in determining whether or not someone would be considered a “public charge”. According to Acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli, a “public charge” inadmissibility determination would be the result of a “totality of circumstances.” The U.S. Citizenship and Immigration Services would also weigh other positive and negative factors listed in the rules, such as age and level of English proficiency. It is important to note that it does not  matter whether or not an immigrant is actively applying for and using certain public welfare programs, but whether or not they are simply eligible

According to a 2018 November research brief by the Migration Policy Institute, approximately 69 percent of immigrants who received permanent residence over the last five years would have had a negative factor under the DHS’s proposed guidelines for “public charge”. The brief also emphasized that such a policy would disproportionately affect women, children, and the elderly; and shift away from Latin American immigrants in favor of European ones instead. The implementation of these “public charge” guidelines would greatly expand the number of green card applicants who could be rejected by the U.S. government for not being wealthy enough.

Legal Arguments Surrounding the New Rules

President Trump argues that this rule is a legal necessity because it ensures that only the financially self-sufficient become permanent residents of the U.S. and that public benefits are protected for American citizens. 

However, there has been an intense backlash from critics against this new “public charge” rule. As of right now, New York, Washington, California, Maryland, and Illinois have blocked the rule from going into effect, and a nationwide injunction has been implemented as well.

Opponents of the new rule have not been quiet – they argue that the “public charge” rule actively discriminates against low income immigrants and immigrants of color, while favoring their wealthier European counterparts. Immigration advocacy groups claim that this new rule would discourage immigrants from seeking necessary assistance, including life-saving healthcare and nutrition. 

New York Southern District Judge George B. Daniels believes that “this rule is simply a new agency policy of exclusion in the search of a justification.” California U.S. District Judge Phyllis Hamilton ruled that the Trump administration violated the Administrative Procedure Act, 79th Congress, 2 Session (June 11, 1946)  by “[acting] arbitrarily and capriciously during the legally-required process to implement the changes they propose.”did not conduct any sort of research into the magnitude of harm the new rule could cause. Washington U.S. District Judge Rosanna Malouf Peterson, issuer of the national injunction, ruled that the DHS had “not cited any statue, legislative history, or other resource that supports the [legal] interpretation that Congress has [given] to the DHS the authority to expand the definition of who is inadmissible as a public charge or to define what benefits undermine, rather than promote, the stated goal of achieving self-sufficiency.” 

Though the nationwide injunction prevents the DHS from actively acting on this “public charge” rule, there sits an almost identical public charge rule at the State Department, just waiting to be implemented. On October 15th, the State Department announced that it would align its public charge guidelines to those of the Department of Homeland Security. While the courts’ decisions over the DHS’s version of the guidelines don’t directly impact the State Department’s version, the State Department’s rule is still temporarily on hold until a new application form is approved. It remains to be seen whether or not the State Department will push forth with implementation of this rule, as its parallel counterpart has been blocked by a nationwide injunction. 

Tangible Impacts of the Public Charge Rules 

Although the DHS’s new rule is legally barred from being implemented (for the time being), the damage may have already been done. Fear and confusion over the actual guidelines and who would be affected have caused immigrants to unenroll already. 

A 2019 Urban Institute study found that in a survey of 2,000 adults in immigrant families, 13.7 percent chose not to use non-cash benefits programs in 2018 due to reports about the potential rule.

According to a 2019 report by the Kaiser Family Foundation, the rule could potentially lead up to 4.7 million people withdrawing from Medicaid and the Children’s Health Insurance Program (CHIP), even though CHIP would not be classified as a negative factor under these guidelines.  

Additionally, The Los Angeles Times reported that there have been instances of immigrants with children enrolled in special education programs withdrawing them from school, as well as refugees and asylum seekers removing themselves from food assistance programs. 

Regardless of whether or not the DHS’s new “public charge” guidelines are approved, they have already had a chilling effect on immigrant and minority communities across the country. Ambiguous definitions,  lack of clarity, and unchecked rhetoric have caused American immigrants to sacrifice necessities of food, health, and housing, to stay in a country with growingly stringent rules on both legal and illegal immigration. If allowed to be implemented, these set of “public charge” rules will set a dangerous legal tone for the future—one that will prioritize financial privilege over that of equality under the law

 

Ellen Wang is a junior from Plano, Texas studying Political Science and Economics (Finance Concentration) and minoring in Biology.

Balancing Presidential Powers: Appointment of Matthew Whitaker

Summary: The appointment of Chief of Staff to the Attorney General Matthew Whitaker as acting Attorney General after resignation of Jeff Sessions has raised questions about the constitutionality of the appointment. Although these questions stem from concern about Whitaker’s position on the Mueller probe, they are nonetheless legitimate, unanswered questions about the constitutionality of the president appointing someone not confirmed by the Senate to an office that answers only to the president.

On Wednesday, Nov. 7, 2018, Attorney General Jeff Sessions submitted his letter of resignation at the request of President Donald Trump. Then the President appointed Matthew Whitaker, Chief of Staff to Attorney General Sessions, to become the new acting Attorney General of the United States of America. The next day, Neal Katyal and George Conway III, husband of Kellyanne Conway, wrote an Opinion article in the New York Times claiming that the appointment of Whitaker to the position of Attorney General is unconstitutional under the Appointment Clause in Section 2, Article II of the United States Constitution.

Justification for the legality of the appointment can be drawn to the Federal Vacancies Reform Act (FVRA), which allows the president to appoint, in the cases of resignation, death, or incapacitation, another to fill that position for a limited time. It is not clear, however, whether the appointment of an individual as a principal officer, an officer that answers only to the president, must be someone that is confirmed by the Senate. FVRA does state that in the case where an individual is no longer able to fulfill the duties of their role, either the first assistant of the officer, a presidential appointed and Senate confirmed individual, or a presidential appointed and senior office of that agency may replace, for a limited time, the vacancy. According to this reading, the FVRA clearly permits the president to appoint someone such as Whitaker, who occupied a senior position as Chief of Staff to the Attorney General, to take up the office of the Attorney General.

This interpretation, however, may run contrary to the Appointments Clause of the Constitution, as the clause requires every principal officer be Senate confirmed. In United States v. Eaton, the Supreme Court permitted a diplomatic vice counsel to serve for a limited time and under special and temporary conditions as an acting principal officer. Therefore, it is not that the appointment of an individual to a principal officer’s position is without precedent. In a more recent case, however, Justice Thomas’s wrote a concurring opinion declaring that a president may never appoint an individual to fill the position of a principal officer no matter for how short a time unless confirmed by the Senate. However, as the opinion is merely a concurrence, the argument does not present any weight as legal precedence. An argument forwarded by the  Office of Legal Counsel classified the individual acting in the role of the principal officer as an inferior officer, and therefore does not need to confirmed by the Senate. On the other hand, Justice Thomas’s concurrence questions whether an appointment is temporary if they are to exercise all the powers of that office.

Even if the president has the power to appoint a non-Senate confirmed individual to the job of a principal officer, the Justice Department already has a statutory line of succession for when the Attorney General is no longer able to fulfill the duties of the office. The question now shifts to whether the more general FVRA supplant the more specific statute that details the line of succession. Generally, specific statutes override broader statutes. If this is indeed the correct interpretation, then the acting Attorney General should instead be the Senate-confirmed deputy Attorney General, Rosenstein, instead of Whitaker. The Office of Legal Counsel’s conclusions in 2007 diverge from those of conventional application of the law, instead ruling that FVRA does indeed give the president the powers to override the more specific statute of succession.

The constitutionality and legal implications of Whitaker’s appointment is important since he had called Robert Mueller’s investigations a “witch hunt.” Democrats have called for Whitaker to recuse himself, noting his past comments on the probe and several conflicts of interest. Should Whitaker not recuse himself, House Dems say they will summon him, by subpoena if necessary. The legal questions addressed above will be the focus of Democrats and the courts should Senate Democrats move forward with a lawsuit against the appointment of Whitaker. Whether the legal problem of succession will be resolved may hinge upon Whitaker’s actions; should he recuse himself from the Mueller probe, the Democrats will likely not pursue legal challenges to the appointment of a non-Senate confirmed individual to a principal office, and the questions regarding succession and the FVRA will still go unsolved.

Mochen Ma is a sophomore in Trinity, studying Political Science with concentrations in Security, Peace, and Conflict, and Political Theory.